A Surprise Honor Named for One of My Heroes

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On January 29, 2015 I was surprised and flattered to find myself the recipient of the J. McNeill Smith Award from the North Carolina Bar Association’s Constitutional Rights Section. As I said in the following acceptance remarks, this award is particularly special to me because I was fortunate enough to know the great lawyer for whom it is named.

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“Mac” Smith is one of my heroes. I met him in Chapel Hill in 1964 or 1965 when, as co-editor of The Daily Tar Heel, I was involved with a group of students, faculty, administrators, alumni and friends of the University of North Carolina who were actively working to repeal or overturn the notorious Speaker Ban Law. Mac had been editor of the DTH in 1938, so we made a connection.

As most of you know, the Speaker Ban prohibited the use of any state-supported college or university facilities by anyone who was a communist, who had advocated the overthrow of the U.S. or North Carolina constitutions, or who had pleaded the Fifth Amendment when questioned about subversive activities. It was passed in 1963, primarily as the result of saber-rattling by Jesse Helms, who was then an editorialist for WRAL-TV. Helms and his allies saw student participation in civil rights protests as evidence of “communist influence” at colleges and universities, especially UNC.

Mac and other lawyers, including UNC law professor Dan Pollitt and Duke law professor William Van Alstyne, were thinking seriously about challenging the law in federal court as early as 1964. Together with other student leaders, I was willing – indeed eager — to be a plaintiff, but the passage of time and events – including the General Assembly’s amendment of the law in 1965 to make the University’s trustees and administrators responsible for prohibiting campus appearances by “communists” and other anti-American speakers – resulted in delay. Ironically, that amendment made it necessary for any suit challenging the Speaker Ban to be filed against Mac’s own alma mater and its leaders.

It was not until 1966 that Mac and Professors Pollitt and Van Alstyne filed Dickson v. Sitterson, the federal lawsuit that eventually resulted in the Speaker Ban Law being declared unconstitutional; consequently, I missed out on the opportunity to be a plaintiff. That honor fell instead to Ernie McCrary, who had succeeded to the editorship of The Daily Tar Heel. In the meantime, spurred in large measure by the insights I had gained from the Speaker Ban fight, I had put aside my intention to become a journalist and entered law school at Chapel Hill. That’s why I often say that I became a constitutional lawyer because of two people: Jesse Helms, who tried to curtail my First Amendment rights, and Mac Smith, who fought to preserve them.

Mac’s papers, which are in the Southern Historical Collection at UNC’s Wilson Library, reflect the hundreds of hours of planning, research and preparation that he expended in his dogged pursuit of the Speaker Ban case. They also show that except for a few hundred dollars contributed by members of newly-formed North Carolina Civil Liberties Union, which was established in direct response to the Speaker Ban, he handled the suit without pay.

The defeat of the Speaker Ban Law was only one of many important legal victories in Mac Smith’s distinguished career, but I have focused on it today because it provided me with a personal connection to one of North Carolina’s greatest lawyers, and which led directly to my love for constitutional law. I am honored beyond measure to receive an award bearing the name of my friend, mentor and role model, McNeill Smith.